Judicial Partition


A partition is the division of real property between people who own the property with undivided interests.  This results in the individual ownership of all interests to each person.  Even though co-ownership has benefits, if the co-owners have no unity on the use, improvement, or disposition of the property, the laws in the U.S. approve partition.

Partition can be voluntary or compulsory.  Voluntary partition is when the co-owners divide the property among themselves by exchanging individual deeds.  Each co-owner owns a part of the property.  They cease to have an undivided interest in the whole property.  The parties can also conduct partition by sale of the property and divide the proceeds among themselves.

Compulsory partition is also called a judicial partition.  A judicial partition is made when the co-owners do not agree to a voluntary partition.  Under such circumstances, a lawsuit to compel partition can be filed to sever property interests.  Court should allow partition even if every other owner objects to it.

There should be co-ownership over the property to maintain a partition action[i].  A property cannot be partitioned unless its title has been clearly established[ii].  There can be no partition of several parcels of land unless every party to the partition proceeding has an interest in the entire property or estate sought to be partitioned.

Any person who is a co-owner of a property can bring a partition action.  However, the person initiating a partition action should have actual or constructive possession of the property[iii].  If the person expects to hold a property in future, the person cannot initiate an action for partition[iv].

Generally, there is no limitation period for commencing a partition action.  The cause of action exists when co-ownership continues over a property[v].  When a co-owner is excluded from possession, the limitation period starts from that day of exclusion.  When the property is subject to a superior claim, the superior claim should be resolved before partition is granted.  The title over the property will be a question of law that should be resolved before partition is allowed.  In such cases, any statute of limitations applicable to adverse claims or the recovery of real property would bar the action, if not commenced within the required time after the claim attached or was discovered.  The statute of limitations can be applied to actions for contribution for improvements in a partition suit.

The court where the property is situated has jurisdiction to dispose of the property[vi].  Jurisdiction to partition and sale of property of a decedent is acquired by the county court at the time jurisdiction is acquired for all other matters relating to a decedents’ estates[vii].  Generally, a court in one state cannot exercise jurisdiction over a property situated in another state’s jurisdiction[viii].  However, in cases of fraud, trust, or contract, jurisdiction of a court is sustainable wherever the defendant can be found, although lands not within the jurisdiction of the court are not affected by its decree[ix].  When the property to be partitioned is situated in different jurisdictions, suit for partition can be instituted in the state where any of the property is situated.

All co-owners of a property should be included in a partition suit.  In a suit to establish title and procure a partition or sale, all persons interested in the title who are directly affected by the decree are considered indispensable parties[x].  If an indispensable party is not made a party to a case, the decree of the court will not affect that person.  This will be a defect[xi].

Generally, in a partition action, regulatory rules applicable in pleadings in civil actions are applied[xii].  To initiate a partition action a plaintiff should file a petition for partition.  However, complaints are also considered sufficient to start a partition action.  The complaint or petition should clarify the point that the plaintiff is a joint owner of a property with the defendants and the plaintiff wants a partition of the property.  It will constitute a proper cause of action[xiii].  The complaint should contain a correct legal description of the property, and its situation, the interest of each of the parties.  Courts can correct mistakes made in the description of the land that is sought to be partitioned[xiv].  In a partition action, defense is set up in the form of an answer by the defendants.  There should not be any separate claim in the answer.  All objections to jurisdiction and process can be set up in the answer.  All the merits can also be responded in the answer[xv].  Defendants in a partition action can provide counterclaims to recover personal judgments on separate and independent matters.  Counterclaims can include relief in excess of what is provided in a complaint[xvi].

A partition action has no right to trial by jury because it is considered an equitable action[xvii].  If the title of the property is in question and the objections are filed, the defendants will have a right to trial by jury[xviii].  Evidence will be taken when property is to be partitioned in kind.  Courts allow the admittance of parol or extrinsic evidence to describe the property when property is defectively or ambiguously described[xix].

In partition actions, statutes provide for appointment of a commission to examine the property, make a preliminary partition of it or determine that the land is not susceptible to partition, and to report back to the court.  Generally, such functions can also be conducted by referees, masters, or a notary.

Partition by sale is a judicial partition.  The proceeds of the sale are distributed proportionately among co-owners according to their proportional interests in the property[xx].

Courts can justify the partition by requiring one party who got a higher share than another person to pay a pecuniary sum to the second person to equalize the shares.  This process is called owelty[xxi].

The main function of courts in a partition proceeding is to separate the unity of possession of property.  Two judgments are provided in a partition action.  The first decree, also considered as the interlocutory decree, determines the share or interest of each of the joint owners or claimants, questions of law or equity affecting the title, and appoints commissioners with directions that are necessary and appropriate.  The second decree in a partition action approves the report of the commissioners and allocates to the respective parties their separate shares or tracts, or confirms the sale of the property[xxii].

[i] Lambert v. Lambert, 403 So. 2d 484 (Fla. Dist. Ct. App. 1st Dist. 1981).

[ii] Kimura v. Kamalo, 106 Haw. 501 (Haw. 2005).

[iii] Albro v. Allen, 434 Mich. 271 (Mich. 1990).

[iv] Huse v. Noffke, 271 N.W.2d 682 (Iowa 1978).

[v] Willmon v. Koyer, 168 Cal. 369 (Cal. 1914).

[vi] Shaffer v. Heitner, 433 U.S. 186, 207 (U.S. 1977).

[vii] In re Estate of Failla v. Failla, 278 Neb. 770, 774 (Neb. 2009).

[viii] Schick v. Whitcomb, 68 Neb. 784 (Neb. 1903).

[ix] Thompson v. Nesheim, 280 Minn. 407, 420 (Minn. 1968).

[x] Barney v. Balt. City, 73 U.S. 280, 287 (U.S. 1868).

[xi] Camp Phosphate Co. v. Anderson, 48 Fla. 226, 247 (Fla. 1904).

[xii] Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413 (Tex. 1939).

[xiii] Succession of Fontenot v. Demaret, 185 So. 2d 861 (La.App. 3 Cir. 1966).

[xiv] Vandall v. Casto, 81 W. Va. 76 (W. Va. 1917).

[xv] United States v. Errigo, 2009 U.S. Dist. LEXIS 3932 ( E.D. Mich. 2009).

[xvi] Toth v. Estate of Klein, 27 Ohio Misc. 37 (Ohio Mun. Ct. 1971).

[xvii] First Nat’l Bank & Trust Co. v. Brakken, 468 N.W.2d 633 (N.D. 1991).

[xviii] Goodman v. Georgia R. B. & T. Co., 221 Ga. 396 (Ga. 1965).

[xix] Ross & Sensibaugh v. McLelland, 262 S.W.2d 205 (Tex. Civ. App. 1953).

[xx] Hendrickson v. Glaser, 204 Neb. 492 (Neb. 1979).

[xxi] Rothert v. Rothert, 109 Ill. App. 3d 911 (Ill. App. Ct. 4th Dist. 1982).

[xxii] Hershey v. Duncan, 2004 Tex. App. LEXIS 9784 (Tex. App. Corpus Christi Nov. 4, 2004).